Search form

You are here

Are Patents Out of Control?

Human Rights, Predatory Patents and The Right to Say "No"

Patents granted in major trading jurisdictions such as the European Patent Office or the US Patent and Trademark Office are often accepted without question by overburdened patent authorities elsewhere. Yet, many exclusive monopoly patents related to the processes and formulae of life are contrary to a country's moral sense - or even pose a threat to food security or the environment. Many countries have national patent laws that provide for what is commonly known as ordre public - ensuring the government's right to say "no" to "immoral" patents. This well-established national right is also embedded in the GATT TRIPS (Trade-Related aspects of Intellectual Property) agreement under Article 27(2).

Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

- GATT (Annex 1C, Part 2, Section 5, Article 27, Paragraph 2)

The grounds for rejecting individual patents (or plant breeder's rights) can be summarized as follows ...

Contrary to national morality: including claims usurping national or indigenous knowledge such as those for Turmeric, Neem, Ayahuasca, Quinoa, Endod and Kava;

Contrary to human life or health: such as those covering human cells or genes, umbilical cord cells, or cloning;

Contrary to the well-being of the environment and food security: including plant and animal life such as species-wide patents on cotton, soybeans and brassicas.

We are asking all governments to consider the following steps:

If any of these patents have been applied for - but not yet granted - notify the applicant that the patent is unacceptable;

If any of these patents have been granted, invoke either national law or TRIPS Article 27(2) to repeal the offending patents;

If no applications have yet been made, notify the patent assignee (usually a corporation or a university) that the patent will be rejected for reasons of ordre public;

Advise other governments and/or the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) of the steps being taken and why;

Beyond these immediate patents, governments could also work for long-term solutions that will protect their sovereign right to reject patent claims that offend national morality or security. Among the steps that could be considered ...

At the time of the review of the TRIPS arrangements in 1999, Article 27(2) should be amended to ensure that patents can not only be rejected on a case-by-case basis but that whole categories of intellectual property claims can be rejected on the basis of ordre public;

By a request of the UN General Assembly (or one of its Specialized Agencies), governments may ask the International Court of Justice for an Advisory Opinion on the predatory nature of current patent regimes vis-a-vis traditional or indigenous knowledge;

Similarly, governments might ask the World Court (ICJ) for an Advisory Opinion on whether or not patents on living processes and formulae are, first and foremost, issues of morality that cannot be subsumed by other international agreements;

Finally, an Advisory Opinion could be sought from the ICJ on the propriety of intellectual property monopolies over human genetic material.

The Patents are Out of Control Chart

A unique sheet illustrating where twenty of the world's worst patents have been granted and scoring individual countries on the number of predatory patents they have allowed to issue on their soil. A preview of the chart is below. Click for a full size picture.

Note: The twenty patents listed here are merely indicative of a much longer list of several thousand intellectual property claims that RAFI believes to be contrary to ordre public. We encourage governments to consult with Indigenous Peoples and Civil Society Organizations.

The 20 Worst Patents - Out of Control:

Each of these patents prey on indigenous knowlege and resources, threaten food security, or are contrary to the dignity of human life. The descriptions include links to more detailed information. Available as a large image file.

Umbilical Cord CellsHomo sapiensUS 5,004,681, EP 343217,etc.

As unbelievable as it may seem, human umbilical cord cells have been patented by the US company Biocyte. Any doctor wishing to use umbilical cord blood cells in surgery or transfusions must pay royalties. The cells may be crucial in treating bone marrow diseases.

Human GenesHomo sapiensUS 5,597,709, WO 9520398, EP 741578, etc.

A human growth hormone gene is one of the latest patents granted to Human Genome Sciences (HGS), a US company patenting human genes as fast as it can. HGS has filed patent applications covering over 1 million partial human gene sequences. HGS has alliances with at least 10 major drug corporations to provide access to human genes and genetic information.

Human Cell LinesHomo sapiensWO 9512814, EP 727046, etc.

Here's proof that the sometimes voiced perception that human patenting is an "American problem" is only partially right. True, it's a problem in the US; but also throughout the world. Australia's Flinders Medical Centre is seeking patent monopoly on human cell lines (part of a diagnostic test for autoimmune disease) on five continents.

The UK's Roslin Institute is so sure it has an economic winner it is claiming its cloning patents in even the weakest of economies - North Korea and Liberia, for instance. The patents are licensed to PPL Therapeutics, a company which has agreements with major drug multinationals like Novo Nordisk, Boehringer Ingleheim, and American Home Products. More licenses may be granted. Unlike many bioengineering patents, which are specified for "non-humans", Roslin says its cloning patents cover all animals, including humans.

CottonGossypium hirsutumUS 5,159,135, EP 270355, CN 87107233, etc.

Challenged in the US and Europe, but so far still standing, Monsanto's patent on all genetically-engineered cotton should never have been granted. Even the US Government, which is seldom hesitant to help US companies, agrees that the patent should be revoked and has asked its own patent office to do so. Monsanto wants to keep the patent, meaning it will take years and millions of dollars before the case is closed.

SoyaGlycine maxEP 270355, DE 3888040, CN 1030940, etc.

Action by RAFI prevented this species patent on transgenic soya from being issued in the US; but this patent, another in Monsanto's long list of sweeping monopoly claims, has been issued in Europe and many countries. Originally issued to the WR Grace Corp, the patent drew an almost 300 page opposition from Monsanto at the European Patent Office. In 1996, Monsanto did an abrupt turn around on the patent after buying WR Grace's agbiotech division. Now Monsanto says it will defend the patent that it previously opposed as "obvious".

One of the most sweeping of a number of extremely broad patents issued in the last decade, Monsanto Corporation's patent on transgenic brassica covers any plant in the entire brassica genus genetically-engineered using the agrobacterium method.

Sangre de DragoCroton sp.WO 9206695, EP 553253, US 5,211,944

Shaman Pharmaceuticals went to the Amazon to get sangre de drago ("dragon's blood"), an indigenous peoples' medicinal plant from which Shaman has isolated its patented pharmaceutical. The company talks about "reciprocity" in its relations with the indigenous peoples who it taps for resources and knowledge; but so far the indigenous people who are Shaman's sangre de drago sources have received a few thousand dollars while Shaman has raised millions in the US capital market.

NeemAzadirachta indicaUS 5,411,736, US 5,409,708, EP 436257, etc.

A very widely known and long-cultivated tree with medicinal and agricultural uses in Asia, and especially, India. Today's sad truth is that neem is almost as well known in Northern patent offices, where multinationals have filed dozens of patent claims on neem. Most recently, Monsanto has taken out a pair of patents on neem wax and oil and claimed broad fungicidal and insecticidal uses.

Called "the powder from the flower of the Gods" in Chinese, the National Institutes of Health (US) and New York University have brought snakegourd firmly down to earth with a series of patents that stretch across the globe. The "inventors" claim a snakegourd-derived compound to treat HIV. As with the bitter melon patent, snakegourd's "inventor" is quite frank about how the plant "has been used in China for many, many years... and is well-known for its therapeutic effect."

KavaPiper methysticumUS 5,585,386, EP 672406, JP 8040894, etc.

The basis of the ceremonial beverage of the same name, Kava is grown in many Pacific countries, including Vanuatu, Samoa, Fiji, Papua New Guinea, Solomon Islands, Federated States of Micronesia, as well as Irian Jaya (Indonesia). Drug companies are racing to patent Kava's many beneficial uses. French cosmetics giant L'Oreal (Nestle is a major stockholder) has patented the use of Kava to reduce hair loss.

TurmericCurcuma longaUS 5,401,504

An ancient and Indian ayurvedic medicine, turmeric has been patented by researchers from the University of Mississippi (US). For thousands of years, Indians have applied ground turmeric root to cuts and scrapes to promote healing. But the US patent gives a monopoly to Mississippi for a "method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound." The Indian Council of Scientific and Industrial Research has asked the US to revoke the patent.

A well-known plant cultivated by Amazonian indigenous people for hundreds of yearsand used in agriculture and medicine. It is best known as a highly effective poison that stuns and paralyzes fish. Conrad Gorinsky, president of the UK's Foundation for Ethnobiology, has patented a barbasco compound and is marketing it to pharmaceutical multinationals Zeneca and Glaxo. Gorinsky's patent claims many uses including, not surprisingly, regulation of muscular activity.

Like Shaman Pharmaceuticals, the primary "inventor" behind this patent on a Pacific medicinal plant goes to great pains to say how important indigenous knowledge is to their research. They may even be providing some return to Samoan people; but the patent says the "prostratin" compound isolated from this Pacific medicinal plant - found from New Caledonia to Tahiti - belongs to the US Department of Health and Human Services, the US Army, and Brigham Young University.

AyahuascaYagé / Banisteriopsis caapiUS Plant Patent #5,751

A medicinal plant cultivated since pre-Columbian times across the Amazon basin. A small US company, the International Plant Medicine Corporation (IPMC) took out a US plant patent on a variety of ayahuasca collected from indigenous people in Ecuador. IPMC has ignored requests from indigenous people to give up the patent and is working to develop psychiatric drugs from the plant.

QuinoaChenopodium quinoa.US 5,304,718, WO 9314624, AU 9222922

A staple food crop for millions in the Andes, particularly for Quechua and Aymara people in Chile, Bolivia, Peru, and Ecuador who have bred a multitude of quinoa varieties adapted to variable Andean conditions. One of these, Apelawa (named for the farmers of a small Bolivian town), has been patented by two professors at Colorado State University (US) because this farmers' variety is the key to a male sterility system. The patent claims any quinoa crossed with male sterile Apelawa plants. CPRO-DLO (Netherlands) is also bullish on quinoa and has applied for PBR monopoly in the Netherlands on at least one variety.

Called "I forget" in Gabon, a reference to the sweet bliss of its berries. The sweet compound in J'oublie has been patented by the University of Wisconsin (US), which has licensed it to industry. Dubbed "brazzein" by Wisconsin researchers, the extract of this African plant is 500 times sweeter than sucrose. Wisconsin thinks it may be a hit in the US $100 billion a year global sweetener market. Researchers are trying to "grow" brazzein in transgenic microorganisms so that berries don't have to be obtained in Africa. The university says brazzein "is an invention of a University of Wisconsin researcher" and "Wisconsin has no connection to Gabon."

GreenheartOcotea rodieiEP 610060, US 5,569,456

From the Guyana Shield region, an extract of the nut of the greenheart tree has been patented by the director of the Foundation for Ethnobiology. The Greenheart patent claims broad medical uses and is being marketed to major pharmaceutical companies. The Foundation boasts that its ongoing studies in Guyana - which it calls "The Greenheart Project" - include "training and the examination of issues relating to sustainable development and intellectual property rights in anticipation of further development of biodiversity resources."

A fruit that has been used in Southeast Asia and China for centuries against tumors and infections, bitter melon has been patented by the US National Institutes of Health, the US Army, and New York University for its anti-human immunodeficiency virus (HIV) effects. Even the "inventor" of the bitter melon patent admits it is "very widely eaten in the Chinese community for health reasons" and that the fruit is widely thought to have anti-HIV properties.

Patented by the University of Toledo (US), endod has been selected and cultivated by Africans for centuries, particularly in Ethiopia. It is used as a soap and shampoo as well as a poison to stun fish. Endod is lethal to snails - a fact discovered by Ethiopian scientists - and may be effective controlling schistosomiasis. After an Ethiopian scientist demonstrated endod's potency to Toledo scientists, they took out a patent, hoping to sell endod as a biological control for the Zebra mussel, a pest in the Great Lakes of the US and Canada.

Patent Victories: Does this challenge sound ambitious? It is. Consider the numerous victories civil society has won over life patents in recent years. RAFI and numerous other peoples' organizations and NGOs worldwide have worked together to bring down unjust, predatory, and immoral patent claims.

DECEMBER 1996: HAGAHAI CELL LINE

After a lengthy global campaign led by RAFI, the US National Insitutes of Health "disclaimed" its notorious US patent on the human cell line of a Hagahai indigenous person from Papua New Guinea (#5,397,696) in December 1996. NIH's forfeit of the patent was directly provoked by severe criticism it was receiving from foreign governments, peoples organizations, and NGOs. Yet NIH was defiant in giving up the outrageous patent, and continues - the latest in a pathetic series of dubious assertions - to say it was not reacting to pressure and only abandoned the patent because it was commercially unviable. Paradoxically, NIH continues to refuse to release information about the patent and associated research, claiming a trade secrets and commercial information exemption in the US Freedom of Information Act.

FEBRUARY 1994: TRANSGENIC COTTON

Reacting to information published in RAFI Communique, in February 1994 the Indian government summarily revoked W.R. Grace's "species patent" on transgenic cotton "because of its far-reaching implications for India's cotton economy." India is the world's third largest cotton producing nation. The patent (now owned by Monsanto) was issued in the US and several European countries where government and CSO efforts are underway to have the patent revoked.

SEPTEMBER 1997: TURMERIC

Working with Indian CSOs, the Indian Government's Council on Industrial and Scientific Research successfully challenged a US patent (# 5,401,504) held by the University of Mississippi (US) on the use of turmeric (Cucurma longa) to promote the healing of wounds. Turmeric (haldi) has been used in Ayuvedic medicine to promote wound healing since antiquity; but that didn't stop the US Patent and Trademark Office from granting exclusive patent monopoly to Mississippi.

CURRENT: TRANSGENIC SOYA

RAFI has filed and with other CSOs is currently pursuing a formal challenge - on ethical and technical grounds - to Monsanto's sweeping "species patent" on transgenic soya (EP0301749B1) at the European Patent Office. Quick action by RAFI prevented the issuance of this claim in the US. The patent covers any and all soya genetically-modified using the agrobacterium method and was originally granted to the Agrecetus subsidiary of the W.R. Grace company. Agracetus has since been bought by Monsanto, leading to a comical, cynical waffling on the patent by the St. Louis-based company. Monsanto originally called on the EPO to revoke the patent, but when the company bought Agracetus, it flip-flopped and told RAFI - in a July 1996 interview - that the company has changed its mind and will now defend the patent it had slammed (in a gigantic 292 page opposition) just two years before as not novel, obvious, and lacking an inventive step.

1990-1994: GUAYMI AND SOLOMON ISLANDS CELL LINES

The Hagahai patent has not been the US National Institutes of Health's only attempt to patent the human tissue of indigenous people. In 1990, NIH filed for patents on human cell lines extracted from a Guaymi indigenous woman from Panama and another cell line drawn from an indigenous Solomon Islander. In addition to the US, the Solomon Islands claim was sought in at least 17 other countries by the US Department of Commerce on behalf of NIH. RAFI's work (including a visit to the World Intellectual Property Organization with Guaymi representatives) and publicity it generated surrounding these patent applications provoked protests from foreign governments, peoples' groups and NGOs that led to NIH's abandonment of the claims. Despite these three victories, NIH still claims the right to patent the tissue of indigenous people (and others) when it pleases. Moreover, it has never come clean about the patent applications and continues to deny requests for public release of files documenting this and related patent claims.